It’s important to track discipline by type and degree

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in Discrimination and Harassment,Employment Law,Human Resources

Expect a call from an employment lawyer when a disgruntled employee is fired. If the axed employee belongs to a protected class (race, sex, disability, etc.), expect more than a call.

Your best defense against discharge lawsuits is simple: Ttrack discipline leading to discharge by type and degree. Make sure you know the race, sex, age and other pertinent characteristics of employees you fire and retain.

Here’s why: Lawyers will look for subtle discrimination. They’ll compare their clients with every other employee fired (or not) to see if you played racial, sexual or other favorites. They’re looking for a “similarly situated” employee, differing only in the protected characteristic. The lawyer of a black client is looking for a Caucasian whom you treated more favorably for the same offense.

Besides tracking discipline by type and degree, it’s important to use solid, tangible rule violations as the basis for discharge.

Recent case: Melvin Wright, who is black, worked as a supervisor at a battery recycling plant. Safety mandated a strict no-smoking policy. A security guard caught two of Wright’s subordinates smoking—a dischargeable offense. The guard called Wright, who allegedly asked him not to report the smokers.

The guard reported them anyway, and they were fired. Wright also was fired for not enforcing workplace rules. Later, one of the smokers, a Caucasian, was rehired. Wright also reapplied but was never called back.

He sued, alleging race discrimination. But the court said Wright couldn’t compare himself to the rehired smoker. Their violations were different: One broke a safety rule and the other broke the trust the company expected from its managers. The case was dismissed. (Wright v. Sanders Lead Company, No. 06-12598, 11th Cir., 2007)  

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